Everything Is a Trade: Principle vs. Negotiation; When to Surrender Control – A Cynical View of the Trial

Let’s be clear. A trial is not about truth. It is not about justice. It is not about what really happened. A trial, unfortunately, is about finality. Looking back through history at the use of trials, the basic theory boils down as follows: Everyone needs to solve their own problems. If you have a problem with someone else, deal with it on your own. If you can’t, then come to Court and some representative of the community or the government will resolve it for you. The government and/or jury can’t fail at resolving the conflict any worse than you have, but they’ll at least put the matter to rest, so that everyone can move on. During the process of reaching finality, the judge, jury, etc… will likely try their best to arrive at the truth, but they are extremely limited in what they can or will hear. For instance, a jury in a criminal trial in Georgia cannot be told that they are allowed to acquit someone of violating a law that they don’t believe should apply in a particular case. Much of the “backstory” leading up to a particular conflict will be deemed irrelevant. Let’s make it clear; the judge doesn’t know you. He doesn’t want to know you. He doesn’t want to know about your case. He wants the case closed. The jury doesn’t know you. They don’t want to know you. Your case is an inconvenience that is keeping them from the work or their family. They want to hear the juiciest story, and they don’t always believe the best of people.

A trial is about maintaining order, and maintaining public confidence in the institutions and laws that govern us. They are about resolving conflicts with some degree of finality. They are not about “justice,” because “justice” is not something they are capable of delivering. The Courts sit detached from a conflict, hear the evidence as best they can, and then issue an order. That’s it. The judge or jury were never part of the conflict, and will never really know what happened. They only know what they were told in court, and what they believe based on what they heard. Using that, they make whatever ruling they deem appropriate, but the important part is that the ruling is final (of course, subject to various appeal possibilities). Once the finality is in place, everyone is allowed to act accordingly. If the Court has found you guilty of a crime that you truthfully did not commit, you still go to jail, get on probation, pay fines, etc… It does not matter if you are factually innocent; you are legally guilty, the sentence is final (for the most part), and you can now be treated like a criminal. If you are found to have breached your lease, even if you truthfully didn’t, you still get evicted, and have to pay the back rent, etc… It doesn’t matter that you were factually in compliance with your lease; the Court has ruled that you breached, and the ruling is final.

So, when considering whether or not to involve the courts in your dispute, keep the history and purpose of the Courts in mind. They are there to resolve conflicts that you can’t. Anytime two individuals (or businesses, agencies, etc…) wind up in court together, and the Court issues a ruling, at least half of the parties leave the Court angry at the “injustice” of the decision. Often, everyone, including the “winner” leaves Court disappointed with the ruling. Why? Because they gave up control of their conflict to a branch of the government. Rather than work it out on their own, they incurred the court costs, attorneys’ fees, time lost, all in the search for “justice,” when all they got was finality.

There is certainly a place for trials. Some issues legitimately cannot be resolved between the parties. Those who have been accused of crimes, for example, often do not have the luxury of negotiating with an interested party. If the prosecutor wins at trial, the defendant goes to jail. If the prosecutor loses, nothing bad happens to the prosecutor. There is no risk or downside for the Prosecutor whatsoever. This often makes negotiation a very difficult prospect in those types of cases. In general, though, when a case is about money, contracts, payment, property lines, or most types of civil matters, you should question whether the Courts would be better at resolving your case than you could be, and whether finality is an important priority for you.

We encourage clients to act on principle, but only in the full knowledge that their principles do not guarantee a victory, nor the most efficient outcome, as their opponents act on their own, conflicting principles. Lawyers, including myself, love trials for the drama, the legal fees, and the thrill of winning. We love to encourage clients to exercise their right to go to trial. What some lawyers forget, though, is that a client also has the possibility of keeping some degree of control of the case through negotiation, which has immense value, and that this control should not be surrendered lightly.